CIV/A/11/85

IN THE
HIGH COURT OF LESOTHO

In the
Appeal of :

RANTJA
QACHONA Appellant

v.

FELIX
HLALELE Respondent

JUDGMENT.

Delivered
by the Hon. Mr. Justice J.L. Kheola on the 20th day of November, 1985

This is
an appeal against the judgment of the Resident Magistrate of Leribe
in which he reviewed the "legal proceedings"
in CC 52/83 of
Tale Local Court. I use the words "legal proceedings"
because the court president of Tale Local Court
had not yet delivered
a judgment in the matter when the learned Resident Magistrate decided
to review the matter in terms of section
26 of the Central and Local
Courts Proclamation No. 62 of 1938. The application had been made by
the present respondent.

The
review order reads as follows!

"It is apparent that in 1981 the defendant sued the plaintiff
before a Land Committee which decided in his favour. IE the
plaintiff
was aggrieved by that decision, he should have appealed to the next
Senior Land Committee and not lodge the case with
the Local Court de
novo (vide Land Act No.17 of 1979, section 16 thereof). In the
circumstances the proceedings are res judicata
and set aside
accordingly."

2

Section
16 of Act No.17 of 1979 deals with a situation where a person is
aggrieved by a decision of a Land Committee in :

1. refusing
   to grant title to land, or

   
   

2. revoking
   an allocation otherwise than under section 14.

   
   

It does
not deal with a situation where two people claim title to the same
land basing their titles on allocations made by chiefs
a long time
before the present Land Act came into force. In the present case the
appellant adduced evidence that the disputed land
was allocated to
him by Chief Blyth in 1965. There was evidence that Chief Blyth was
acting as chief of the area where the land
is situated at the time
when he allocated the land to the appellant. The respondent relies on
a Form C which he alleges was issued
by Chief Moholobela in 1977. The
appellant does not allege that when Chief Moholobela revoked his
title to the land, before allocating
it to the respondent, he did not
give him proper notice in terms of the law. All what he is saying is
that the land was lawfully
alloca­ted to him in 1965. There is no
evidence that Chief Moholobela ever attempted to revoke appellant's
title to the land
in terms of section 13 of the Land Act 1979. It
seems to me that the dispute between the present parties did not fall
under section
16 of the Act. It is a dispute that could properly be
resolved by a court of law. I have not been able to find any
provision in
the Land Act 1979 ousting the jurisdiction of any court
in land disputes.

The
review order is also challenged on the ground that the appellant was
never given the opportunity to be heard by the learned
Resident
Magistrate. In his reasons for judgment he mentions that "the
applicant and respondent were called before this court
for
repre­sentation. The Applicant came but the Respondent having
been so informed to make representation declined to attend
the review
proceedings. In

3

the
circumstances the court proceeded in his ....." There is nothing
in the file to show how the appellant was informed of
the date of
hearing. There is no return of service of a messenger of the court or
a copy of a letter to either the appellant or
his chief giving notice
of the date on which the parties were to be heard. There is no record
of the proceedings in the magistrate's
court when the respondent
addressed the court. There is no written application for review by
the respondent, so that we do not
know what his grounds were. I am
satisfied that the review proceedings were irregularly conducted
because no proper notice appears
to have been given to the appellant
of the date of hearing, so that the audi alteram partam rule was
ignored. In his reasons of
appeal to this Court the appellant stated
that he had not been given any notice. In reply to this serious
allegation of gross irregularity
the learned Resident Magistrate
simply says the parties were called before his court. That reply is
not satisfactory without any
documentary evidence.

The
appeal is allowed. It is ordered that the case must start de novo
before another court president. The respondent must pay costs
of this
appeal.

J.L.
KHEOLA

JUDGE

21st
November, 1985.

For
Appellant : Mr. Monaphathi

For
Respondent : Mr. Ramodibeli